Florida's use of new drug in execution spurs ethical concerns

The Florida Department of Corrections is planning to use a lethal injection drug today that has never been used before in executions, raising ethical concerns by legal experts throughout the nation.

The drug, midazolam hydrochloride, which is commercially known as Versed, would be used for the first time in the scheduled execution of William Happ, 50, who has been on death row for 27 years for killing and raping 21-year-old Angie Crowley in Crystal River in 1986.

A spokeswoman from the Department of Corrections said it has limited supplies of the drug it had been using — pentobarbital sodium — so it switched to Versed.

The nation has seen a shortage of the drug since its maker, Danish company Lundbeck, stopped shipping the drug to prisons where executions take place.

“This is all connected to international concerns over the death penalty ... and essentially sanctions on the U.S. based on a human rights policy,” said Richard Dieter, the executive director of the Death Penalty Information Center in Washington, D.C. “It puts us in a different light. If anything, Europe has gotten stronger … it seems like a lot of our drugs are produced overseas, and that’s going to continue to be a problem.”

Deborah Denno, a law professor at Fordham University in New York who has studied lethal injection procedures in the U.S., said that the drug companies have more to gain than lose by discontinuing sales to prisons.

“These drugs are not money-makers for companies, so I think it’s not worth it to a manufacturer to get embroiled in a process that could have a negative impact on other drug sales,” Denno said.

She added that it’s possible — and there’s even been some indication — that the drugs could be acquired by prison hospitals for surgeries and then used for executions.

Some states, such as Texas, are getting pentobarbital from compounding pharmacies. But no states apart from Florida have switched to Versed, which is normally used as a sedative before surgery and has never been used in an execution.

“These drugs weren’t made to kill people … they were made with another purpose in mind. It’s unknown how they’re going to work,” Denno said.

Denno added that the drug is a backup in Ohio, “but it’s very controversial because no one knows how it’s going to work.”

The Florida Department of Corrections said it has several pending motions challenging the switch to Versed but none filed for Happ.

Happ’s attorney, Eric Pinkard of St. Petersburg, could not be reached for comment.

Versed is the first of three drugs that will be administered. The other two are vecuronium bromide, which causes paralysis, and potassium chloride, which causes cardiac arrest.

Dieter said the three-drug protocol “puts more weight on the first drug. The first one’s got to work right, or the other two are painful,” especially potassium chloride. “If you’re not anaesthetized, it would be a worse way (to die) probably than electrocution and other methods.”

“The more injections you have, the more risk for error,”Denno added.

The second drug is a paralytic, which induces paralysis, so the risk is that the person could be in extreme pain but would be unable to communicate that.

“That puts an antiseptic mask over the whole thing, a veil of apparent humaneness,” Dieter said. “Whether the inmate is experiencing pain is hard to tell.”

Denno added that the same paralytic used to execute people cannot be used to euthanize animals.

“Vet standards are very strict. … (the paralytic agent) would be considered cruel,” Denno said.

“It’s striking how haphazard (paralytic drug usage) is and how little oversight (there is) in using it in human beings,” Denno said.

Other states with the death penalty use a one-drug protocol, Dieter said. “The worst thing that can happen is that it takes a little longer,” he said.

Denno called Florida’s use of the drug reckless.

“You are not seeing other states do this. Florida is acting alone,” Denno said. “When states act alone in this, that’s a risky venture.”

Dieter noted that despite the concern over Versed’s intended use in Happ’s execution, Happ himself has posed no objection to it.

“That complicates exactly what will happen in this case,” Dieter said. “It’s hard for an average citizen to say we have a stake in this. The court’s response is, ‘It’s the inmate who has a stake in this.’

“I think there are broader ethical issues, constitutional questions that obviously are going to come up in future executions.”